West v. Hyundai Motor Manufacturing of Alabama(MAG+)

Filing 29

OPINION AND ORDER: it is ORDERED that: 1) Plaintiff's 25 objections are sustained; 2) The 24 recommendation is adopted only to the extent that it finds that the amended complaint is deficient for not alleging exhaustion of administrative remedies and is otherwise rejected; 3) Defendant's 19 motion to dismiss is denied without prejudice; 4) Defendant's 26 motion to dismiss amendment is denied; This case is referred back to the magistrate judge for further proceedings. Signed by Honorable Judge Myron H. Thompson on 11/17/2020. (Attachments: # 1 Civil Appeals Checklist)(amf, )

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION JERRY D. WEST, ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. HYUNDAI MOTOR MANUFACTURING OF ALABAMA (HMMA), Defendant. CIVIL ACTION NO. 2:18cv1078-MHT (WO) OPINION AND ORDER Plaintiff, asserting safety is harassment, claims defendant. who related pro se, filed retaliation, to his and former this lawsuit occupational employment with After defendant moved to dismiss, a United States Magistrate Judge formerly assigned to this case construed plaintiff’s amended complaint. response to the motion as an Defendant then moved to dismiss the construed amended complaint. This lawsuit is now before the court on the recommendation of the magistrate judge that defendant’s motion to dismiss the construed amended complaint be granted because the amended complaint fails to allege that plaintiff filing a exhausted complaint Commission with (EEOC). (a) plaintiff’s administrative the Also objections remedies Employment before to the by Opportunity the court are recommendation, in which he submits documentation of his complaint to the EEOC, and (b) “amendment” or, defendant’s motion alternatively, to dismiss defendant’s this reply to plaintiff’s objection. After an independent and de novo review of the record, the court concludes that plaintiff’s objection should be sustained, and the magistrate judge’s recommendation should be adopted in part and rejected in part. amended While the recommendation is correct that the complaint administrative fails to remedies, the allege exhaustion document that of the magistrate judge construed as an amended complaint was not filed as such, so plaintiff would not have known that he needed to allege exhaustion in it. 2 Moreover, plaintiff did attach an EEOC right-to-sue form to the original complaint, apparently Rights which overlooked. (doc. no. the See 1-1). magistrate Dismissal Finally, and judge Notice defendant did of not raise failure to allege exhaustion as a basis for its motion to dismiss the amended complaint, so plaintiff did not have advance notice that he needed to address that issue in his response to the motion. For these reasons, the court will reject the recommendation to the extent it recommends dismissal of plaintiff’s amended complaint. *** Accordingly, it is ORDERED that: (1) Plaintiff's objections (doc. no. 25) are sustained. (2) The only to the recommendation extent that (doc. it no. finds 24) that is adopted the amended complaint is deficient for not alleging exhaustion of administrative remedies and is otherwise rejected. 3 (3) Defendant’s motion to dismiss (doc. no. 19) is denied without prejudice. (4) Defendant’s motion to dismiss amendment (doc. no. 26) is denied. This case is referred back to the magistrate judge for further proceedings. DONE, this the 17th day of November, 2020. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE 4

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